U and W

[2005] FCWA 11

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: U and W [2005] FCWA 11

CORAM: PENNY J

HEARD: 9, 10 & 13 DECEMBER 2004

DELIVERED: 4 FEBRUARY 2005

FILE NO/S: PT 4263 of 1998

BETWEEN: U

Applicant/Father

AND

W

Respondent/Mother

Catchwords:

Children's issues - contact - alleged sexual abuse - child refuses to see father - significance of child's wishes - supervised contact - no final orders

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Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr N Cogin Respondent: Mr P Mugliston Child Representative: Ms L Forrest

Solicitors:

Applicant: Bowen Buchbinder & Vilensky Respondent: Meredith Hunter & Associates Child Representative: Carr & Co

Case(s) referred to in judgment(s):

H v W (1995) FLC 92-598

R and R Children's Wishes (2000) FLC 93-000

1The father and mother of the child H, born February 1997, lived together for only 18 months, and separated shortly before his birth. For part of the time they lived together they were both addicted to heroin. After the death of a close friend from an overdose of the drug, the mother stopped using, but the father did not. For many years he used both heroin and, at times,

amphetamines. He has also suffered from mental health problems and has been hospitalised on a number of occasions as a result of drug and mental health issues.

2Not surprisingly, the mother has been concerned to ensure that H's contact with the father has taken place in an environment where she can be sure he is safe, and the father has not been under the influence of drugs. The contact has mostly been supervised by the father's parents. The father did, for a period, undertake drug testing on a Monday after a weekend contact period to prove to the mother he had not been under the influence of drugs at the time he had the contact with H.

3In May 2003 H reported to his mother that the paternal grandfather had played a game with him and his cousins called "the magic bookshelf game". One aspect of this game involved the grandchildren, including H, putting their hands in the paternal grandfather's pocket to look for treats. Upon hearing of this game, the mother decided it was inappropriate and suspended contact. She advised the paternal grandparents of this, and reported the matter to the Department for Community Development ("DCD"). They investigated the allegations and determined that the game was innocent and no inappropriate conduct had taken place by the grandfather.

4In February 2004 the parties consented to the father having alternate weekend overnight contact, supervised by the paternal grandparents, but with the father to have short periods of unsupervised contact. One month after this agreement, H allegedly disclosed to the mother the paternal grandfather had encouraged him to play the magic bookshelf game. A few days later he allegedly stated that the father had sexually abused him. The mother suspended contact immediately and reported these allegations to the child representative. H was interviewed by police officers from the Child Abuse Unit. No action was taken by the police against the father or the paternal grandfather.

5In June 2004 it was ordered that the father should have contact to H, supervis ed by Mother Hen. H refused to go and the contact did not take place. The father has had no contact with H since March 2004, allegedly because H does not wish to see him.

6The mother's position at trial was that she believed H when he said he had been sexually abused by the father. She was convinced the grandfather had played the magic bookshelf game with his grandchildren to get some sexual gratification as a result of the

children putting their hands in his pocket. The mother says that the father's contact to H should be permanently suspended because of what has taken place.

7The father denies any sexual abuse by him took place and says the mother has over-reacted to an innocent game played by his father and the grandchildren. It is his position that his contact with H should be reinstated.

8 The issues for determination by me are:

•Did the paternal grandfather's conduct in playing the magic bookshelf game with his grandchildren amount to sexually inappropriate conduct by him?

• Did the father sexually abuse H?

•Is there an unacceptable risk that H will be sexually abused by either his paternal grandfather or his father if left unsupervised in their care?

•What weight should be given to H's expressed wishes not to have contact with his father?

Paternal grandfather's conduct and allegations of abuse

9The mother says on 11 May 2003, H reported to her that he had been asked to put his hands in his grandfather's pockets to retrieve lollies, while his grandfather made "ooh" and "aah" noises, and he had felt uncomfortable about it. The mother left a message on the paternal grandparents' phone advising that playing this game with H "was not on".

10 H was interviewed by two officers from the DCD on 13 May

2003. In this interview H told the officers that Papa "did a naughty thing called the magic bookcase". He explained they had to touch the bookcase and the paternal grandfather would shiver or go "Ah". If he said "Ah" he said they had to look in his pockets. H stated he only played the game once, the Saturday prior to the interview. He played the game at his paternal grandparents' house with his cousins, F and E, present.

11 H was asked whether he thought the game was funny. He said he thought that "something funny was going on, like … like he was trying to make me do something". When asked what, he described putting his hand in his pockets and rubbing the genital area, wriggling around and up and down. He confirmed that in the

pockets there were items, including onions, potatoes and an electric drill bit. H stated he also found peppermint lifesavers in the pocket. He said he did not feel anything when he put his hand in his pocket. He also described a tickling game where the paternal grandfather had tickled H on the stomach, and his cous ins, E and F, who lifted up their dresses to be tickled.

12 H was asked in this interview whether anybody touched him either on the "willy" or "bottom". He replied the father may have when he put his hands in his pockets. This appears to have happened when the father and H were playing the magic bookshelf game. In this case the father was putting his hand into H's pocket and getting a coin out.

13 Interestingly, when asked who he would tell if anyone touched him inappropriately, H answered "an adult, Mum, Dad, Papa, teacher". Papa is the name he gives to the paternal grandfather.

14 In the interview, H stated that he didn't like his father "because they lie", although he could not say what sort of things the lies had been about. He confirmed that neither his mother nor D, the mother's partner, liked the father or the paternal grandfather. H stated it was the mother who had told him the paternal grandfather lies. He stated his father also lies because he stole four "grand" off his mother and broke into the maternal grandparents place. H confirmed his mother and D had told him to say the really important stuff when he spoke to the DCD officers. They were the "bookcase thing and tummy thing".

15 Not surprisingly, as a result of this interview, DCD decided there was no evidence any maltreatment had occurred. The mother was shocked by this. When told of DCD's response, she became upset and was crying, saying she could not believe they were not going to take any action.

16 In the affidavit of the paternal grandparents they describe the magic bookshelf game.

"8 The Magic Bookshelf Game is an integral part of the lives of our grandchildren and their friends. It is innocent childhood fun and the children will often ask to play it. If one of the children touches a certain spot on one of the shelves of a bookcase in our library room, some strange object (such as a toothbrush, onion, apple or a packet of lifesavers) appears in one of my pockets, in a hat, in Ellen's pocket and so on.

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9The accusation of a "shiver" when I am touched is denied. The "shiver" occurs when the children touch the bookcase and signifies the magic happening. I deny that there is any contact with the children and my skin. We deny any allegation of touching or fondling.

10 We deny that we forced H to play the game."

17 Both Mr and Mrs U were cross-examined in relation to their affidavit. Mr U stated he has been playing the magic bookshelf game for about 18 months, and has played it on about a dozen occasions. He has five grandchildren. When he plays sometimes all the grandchildren are there, but on occasions he has played with a minimum of two. He confirmed after he received a message on his phone from the mother saying that the game "was not on", he played the game one more time with H. He did this because he did not want to be dictated to by the mother, as the game was harmless, H asked to play the game and he enjoyed it. He denied there was ever any contact with his penis by the children when they put their hands in his pocket. He stated often the item they were searching for was on the top of a handkerchief. While he is firmly of the view that the game is innocent, rather than expose himself to these allegations he stated he would not play this game with H again. The paternal grandfather described a close relationship with H, who he said previously chatted and joked with him. He played cricket, football and soccer with him.

18 Mrs U stated that the magic bookshelf game had been played with H ever since he was a little boy, and it was a game which had been developed by the paternal grandparents after reading it in a book. She previously described a good relationship with H.

19 The mother firmly believes that the paternal grandfather gets the grandchildren involved in the magic bookshelf game because he wants the children to touch his penis. The only reason she appears to give for being so convinced about this is that she found the paternal grandfather very intimidating when she was in a relationship with the father. This relationship ceased in 1997. It seems extraordinary that she would form such a firm view of the grandfather's conduct on the basis of her opinion of him being intimidating seven years previously.

20 I am satisfied upon hearing the paternal grandparents give their evidence, and upon closely perusing H's comments made to DCD and to the officers from the Child Abuse Unit, that the game is an innocent one played by Mr and Mrs U to entertain their

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grandchildren. When H described the game to his mother, she immediately reacted and thought it inappropriate. When she got home she rang the U's house straight away. She stated she did not know where H was when she made this call, but if he was in the house he would have heard and seen her reaction. I have no doubt H formed the view the game was inappropriate after seeing his mother's reaction to it.

21 Nothing was said by H to the DCD officers to suggest the paternal grandparents behaviour had been inappropriate. It is highly unlikely that H would have suggested that his "Papa" would be a person he would tell if anyone inappropriately touched him if, in fact, he had been acting in an inappropriate way with him. The mother has no basis for assuming this game is inappropriate other than the fact that the children put their hands in their grandfather's pocket. She has barely had a relationship with the paternal grandfather for seven years, but would not consider there was even a possibility that this game could be innocent. I am satisfied there has been no sexual contact or "grooming" as suggested by the mother.

Allegations of sexual abuse against the father

22 In the interview with the DCD officers on 13 May 2003, in relation to the father, H made the following comments (page 5 of typed record of interview):

"K: Anyone touched your willy? H: No, except for T.

K: What happened?

H: He did this (demonstrating hand in pocket touching genital area)

K: What were you wearing? H: Shorts and a shirt.

K: What room?

H: The book room, same one.

K: (Karen clarified what H just said). What were you doing?

H: Same thing as Papa was doing. K: Who else?

H: T.

K: Same game, ooh, aah? H: Yes.

K: What did you touch?

H: A coin.

K: What coin? 20 cent, 50 cent? H: 20 cent piece.

K: What did T do? Get the coin?

H: Yes.

K: Ever played magic bookcase with T? H: No.

K: Hand in pocket, touched your willy?

H: Yes.

K: Because getting coin out? H: No."

23 H was interviewed on 25 March 2004 by two female police

constables. When asked what did his Mum tell him, questions and

answers 4 to 13 are revealing.

"Q4 What did mum tell you about today?

A4 What I have to tell you. I have to say the things that T

did to me.

Q5 Who's T?

A5 Um, he's a ..(began stuttering) .. he used to be with mum, but he's not. He walked off when mum was pregnant, when she gave birth to me. He's got lots of money but we don't. He makes us go to the Family Court thing.

Q6 Why do you go to Family Court?

A6 I don't. Mum does, because they want me to stay over there when they don't love me.

Q7 Who's they?

A7 Granny and Papa. They don't love me and neither does

T.

Q8 Why do you think they don't love you?

A8 They don't say it. They ever say it. I have to go to their overnight but I don't like to.

Q9 What is it you don't like about staying overnight?

A9 They're annoying and they don't like me so I don't want to like them.

Q10 You said before that T does things to you, tell me about the things that T does.

A10 He lies on top of me and rubs on my tummy and he holds my arms down and makes funny noises.

Q11 Tell me about a time that happened.

A11 It started when I was about 4. Its been a long time, when he's done it.

Q12 Can you remember the first time?

A12 I was about, turning 4. 1st of January, before I was 4.

My birthday is in February. They don't even know my birthday. He ran off when my mum gave birth to me. So they don't know my birthday. Papa plays this silly game, Magic Bookcase. Last time, they teased me. Granny and Papa said I have to play the game. F (sic) and E, my cousins they walked in and said "Come and play Magic Bookcase". They hadn't started playing yet. I didn't want to play, they started to tease me.

Q13 Tell me about the last time T laid on you.

A13 I just started staying overnight and he's probably going to do it again.

24 Questions and answers 28 to 45 set out the details of the alleged abuse by the father on H.

Q28 What happens at T's house? A28 He lies on me.

Q29 Did Granny take you to the door?

A29 No. She stays in the car. Shes (sic) lied to me 4 times.

She said her and papa (sic) swapped over and he drove,

but he didn't.

Q30 From Granny's care, how do you get to T's house?

A30 I walked there by myself, its an alley way. He laid on me when I get in.

Q31 Did you knock?

A31 No he tried to hide behind the thing. He looks through the hole.

Q32 What happened when you walked in

A32 I walked in on the carpet and he lied on me. Q33 How did he lie on you?

A33 He got down on his knees and he lied on top of me and pinned down my arms with his hand like that (makes a fist and pushes on his upturned wrist).

Q34 Did he say anything?

A34 No. He just stared at me. I said about 20 times to get off but he didn't.

Q35 How did you feel? A35 Sad.

Q36 Is it a game that T plays? A36 No.

Q37 How do you get on the floor? A37 He trips me up.

Q38 What does T do?

A38 He rubs with his hip on my tummy and makes funny noises.

Q39 What sort of noises? A39 Monkey noises.

Q40 How long does he lie on you?

A40 About 20 seconds if I count up in my head. Q41 What makes him get off?

A41 Me saying 20 times "get off me".

Q42 Why does he do it?

A42 I don't know, he just does it.

Q43 Does he do anything else that makes you sad? A43 No, he just does that.

Q44 You said this happened just before you turned 4, how

can you remember that?

A44 I can.

Q45 Can you remember your 4th birthday?

A45 Granny buys presents and he pretends he bought them.

25 In paragraph 65 he was asked why his mother had told him not to play the magic bookcase game. He stated she told him that because he (paternal grandfather) wants me to touch his "willy".

26 He then went on to describe another time he played the game with the father.

Q70 Has anything else happened when you were with T?

A70 I did it when it was fun, with T. I put 20 cents in my pocket and he looked around and T touched my willy.

Q71 When was that? A71 When I was 6.

Q72 When you were 6 this year or last year?

A72 Last year when I was 6. Q73 What sort of visit was it? A73 Sunday visit, it was in May.

Q74 How do you know it was May? A74 I remember.

Q75 Who's house were you at? A75 Granny's and Papas.

Q76 Who else was there?

A76 Granny and Papa but not in the exact room. Q77 What room were you in?

A77 The book room.

Q78 Was anyone else in the room? A78 Um, no.

Q79 Tell me about that, what happened?

A79 Put his hand in my pocket and he rubbed me like that

(rubbed the right hand side of upper thigh/groin area).

Q80 Was it a game?

A80 No, well yeah, I made him touch the side of the table and that. He pretends he was magic, a magician.

Q81 What did T do?

A81 He just rubbed it (touched his groin area again). Q82 How long did that happen for?

A82 Long pause 5 seconds at least.

Q83 Did T say anything? A83 No.

Q84 Did you say anything?

A84 No. And then finally he said I can't find it. He wasn't looking at all.

Q85 Was he looking in the right place? A85 No.

Q86 Where was the 20 cents?

A86 He looked in this pocket (indicates right pocket) and it was in this pocket (indicates left pocket).

Q87 How did he rub your willy?

A87 (rubbed his hand on the table in a circular motion) in circles.

Q88 How hard did he rub it? A88 Soft.

Q89 Did anything happen to your willy when he was rubbing it?

A89 It went a little bit hard.

Q90 How did that make you feel? A90 Um, confused.

27 It is obvious that the father has been portrayed to H by the

mother in a very negative light. He started his interview by telling the police that the father walked off when the mother was pregnant, he had lots of money and they did not, and he made them go to the Family Court. He stated that neither the father nor the grandparents loved him.

28 When relating the details of sexual abuse by the father to the police, he talks of incidents where the father lay on top of him, rubbing his hips, his tummy and holding his arms down and making funning noises. He alleged that this happened when he was about 4. I do not accept that these incidents occurred as described

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by H, nor that they began when he was 4. I find it unbelievable that H would not have mentioned these incidents previously when he spoke to the DCD officers in 2003 if they had occurred before that time. H was 6 when he was interviewed by the officers from DCD. On that day he made an allegation about the father putting his hand in his pocket. The incidents he described to the Child Abuse Unit of his father lying on top of him, pinning him down and making monkey noises would have been far more disturbing to him and yet he did not mention it. Neither had he mentioned it to his mother at that time.

29 The father's explanation for H's allegation is that he play wrestles with him when he has contact with him. He says a typical contact day involves physical activities with H, and he described having "rough and tumble" fights with him. He states he has never pinned him to the ground, and he has not been on top of him. He confirmed that he has tickled him on occasions. If H says the word "enough" then the tickling is stopped.

30 No-one else has played rough and tumble games with H. The father also stated that when H comes for contact he frequently hides behind the door and H has to find him.

31 In my view, H has put together two innocent games played by the father and turned them into something more sinister. The father does hide behind the door when H comes for contact, and he has to find him. He does "play fight" with him, but says that he does not lie on top of him and pin his arms down. It is possible that on occasions H has not enjoyed the play fighting and has, in his own mind, turned the game into something it was not. I have no doubt that the mother would be happy to hear anything said by H about the father's conduct to support the inappropriateness of it.

32 From question 70 onwards of the police interview the questions appear to relate to the same incident as described to the DCD officers in May 2003. At that time he described the father putting his hand in his pocket in the context of playing the magic

bookcase game. At that time H described his father putting his hand in his pocket to get a coin and him touching his "willy". From question 70 onwards H describes not only the father putting his hand in his pocket looking for a 20 cent piece and touching his willy, but rubbing his hand in the upper thigh groin area for a period of five seconds. He also describes his penis being "a little bit hard".

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33 I do not accept this as being the truth. The version provided to the police a year later goes much further then he described to the DCD officers only a week or two after it occurred. In my view, the allegation made by H that his father rubbed his penis is unsubstantiated and almost certainly did not occur. It is obvious H has been negatively influenced by the mother about the father and has responded to that by grossly exaggerating an incident which occurred when the father was looking for a coin in his pocket. I am satisfied that H has not been sexually abused by the father.

Is there an unacceptable risk that H will be sexually abused by his paternal grandfather and father if left unsupervised in their care?

34 In my view, there is no risk that H will be sexually abused by either his paternal grandfather or father if left unsupervised in their care. The real concern is that H may again fabricate some allegation of abuse against them. If contact was to be reinstated it would be in the interests of the father and the paternal grandfather that their contact with H was supervised, at the very least by the paternal grandmother, in order to protect them from unsubstantiated allegations.

Should H's wishes be taken into account and, if so, what weight should be given to them?

35 The mother says H does not want to have contact with the father. H told Dr Watts, the Single Expert, he did not want to see the father. When asked to give a score out of 10 to the paternal grandparents and the father, H scored each of them 0 out of 10. On a drawing task he clearly drew himself away from his father. It was Dr Watts' view that children who have been abused are far more likely to have ambivalent views of the perpetrator than all negative ones. H's approval rate of the mother, D and the maternal grandparents were all 10 out of 10. Dr Watts stated in his experience where a child has an all negative view of one side and all positive of the other side, and the child has been heard to change his mind on his mother's prompting, then the child is trying to please a parent or is being influenced by that parent.

36 After the allegations of abuse were made an attempt was made to reinstate contact, supervised by Mother Hen. The maternal grandmother says on the day the contact was to occur she was at the mother's home with H. She stated H said to her he did not want to go on contact. Annemarie, the Mother Hen supervisor, describes her arrival at the mother's house to collect H for contact as follows:

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"H appeared comfortable with the idea of coming to see his Dad. I assured him that I would be with him at all times and that if at any stage he felt uncomfortable or simply wanted to leave, I would bring him home. He appeared to accept this until his mother reminded him that he had said that he didn't want to go, immediately he changed his mind. This happened several times. It appeared he was saying he didn't want to go to please his mother."

37 The mother stated that she intervened and reminded H he did not want to go on contact because Annemarie was making the contact with the father sound too good. In her view, she was glossing over the fact that H was to see his father.

38 Five days later Annemarie again tried to collect H for contact with his father from the mother's home. H again said he did not want to go.

39 H also stated during the assessment process by Dr Watts he would not attend at his premises to see him. The mother accepted this at the time. H has also refused to attend Relationships Australia and to see the Child Representative. The mother is firmly of the view H's wishes should be followed in relation to these matters.

40 In H v W (1995) FLC 92-598, Fogarty and Kay JJ, in relation to the issue of children's wishes, stated as follows:

"The laws to be applied in Australia is as stated by Hannon J in Doyle's case, supra, and by Butler-Sloss LJ in Re P, supra , and in accordance with the statute."

As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately, the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view."

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41 In R and R Children's Wishes (2000) FLC 93-000 the Full Court stated in relation to the comments of Fogarty and Kay JJ in H v W (supra) at para 44 on p 87,071:

"It is quite clear their Honours were not saying that if the children's wishes are valid then they are to be acted on by the Court and, indeed, this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determining of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial judges, it is apparent that good reason should be shown for doing so."

42 H was described in the following terms by the Principal of his primary school:

"He has shown himself to be an exemplary student who can be trusted and relied upon in all situations.

H's academic performance is of a high standard and he is keen to learn. He is very intelligent and listens well to advice and instructions.

H is a delightful child with a kind nature and helpful disposition. His caring nature suggests a strong moral, supportive and caring home environment.

Everyone at the Primary School has been impressed by H and we would have no hesitation in supporting this wonderful child under any circumstances."

43 This glowing reference would indicate the contact H has been having with his father in the past has not had any adverse impact on him in the school environment. H is described as an intelligent 7 year old, who is also thoughtful. In these circumstances one would normally give his wishes some significant weight. Unfortunately, H lives in an environment where his relationship with his father is not supported. H has been advised of a number of negative aspects of his father's conduct and personality, which have had an impact upon him.

44 H's comments when interviewed by the police reveal the negative comments made to him by others, almost certainly his mother, her partner and/or the maternal grandparents. H describes his father as "walking off" when the mother was pregnant, and the fact that the father and his parents do not know of his birth date. This is obviously not true. Later in the interview H contradicts this statement when he was asked about his fourth birthday. His

response was that "Granny buys presents and he (the father)

pretends he bought them."

45 It is clear H is aware of the continuing litigation between the mother and father. He also seems to be aware the father has greater resources than the mother. I have no doubt the mother discusses the court proceedings and her concerns in relation to them around H.

46 Prior to the allegations made in 2004, the evidence was that H enjoyed his contact with the father and his relationship with the paternal grandparents. The mother reluctantly agreed. H had fun on contact, although she qualified this by saying previously there were occasions when he did not want to go on contact.

47 The evidence of the Mother Hen supervisor is telling. In my view, H has been put in a position where he is well aware his mother is fearful of the consequences of him having contact with the father. He has a close relationship with her and when reminded by her that he previously said he did not want to have contact with the father, he quickly obliged.

48 I am not satisfied the wishes expressed by H in relation to contact with his father are his own, and I am satisfied he has been influenced by the mother and her family against having contact with the father.

49 While H's desire not to have contact with the father is an important issue to be considered, if it is determined that contact should take place, I am not satisfied the wishes expressed by him should be given significant weight in determining this issue.

Section 68F factors

50 In determining whether orders should be made that H have contact with the father, I need to take into account those other factors mentioned in s 68F which are relevant to these proceedings.

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

51 It is every clear H has a close relationship with the mother, her parents and her de facto.

52 Joanne Thorpe, a social worker, prepared a report in relation to the parties and H in 2001. At that time she described the father's relationship with H as being warm and spontaneous. Later in her

report of 12 January 2004, Ms Thorpe states that after reading various reports and affidavits of the parties, none of the parties have stated that the child was unhappy, nor have there been complaints made about his care while in the company of the father and his family. In 2003 H nominated the paternal grandfather as a person he could turn to if he had been inappropriately touched.

53 It appears that up until 2004, when H made an alleged disclosure after questioning by the mother in relation to sexual abuse by the father, that his relationship with the father had been a warm and spontaneous one. The father did, however, confirm he has difficulty relating to H on an emotional level and had never told him that he loved him. This fact has been discussed by H with his mother and referred to by him when interviewed by the police.

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person, with whom he or she has been living;

54 In my view, as I have stated previously, it is only as a result of the mother's attitude to the father and her heightened anxiety in relation to H's safety, that he feels he cannot attend for contact. If H is forced into a situation where he has to leave his mother and have contact with the father, there is a potential for this to cause him distress and anxiety. The Child Representative has suggested that family therapy should take place wit h a view to facilitating the contact. If contact was ordered, in my view, such therapy would be essential to minimise any distress or anxiety for H.

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

55 Unfortunately, it is now impossible to reinstate contact on the terms and conditions it was prior to its cessation in June 2004. Contact at that time was ordered to be overnight. Given the reluctance of H to go on contact, the fact that the mother does not support the contact and fears for his safety, it is only possible to order contact which takes place in an environment where both H and the mother felt he would be supervised and safe. Supervised

contact would be necessary not because I had any concerns about the father sexually abusing H, or being unable in any other respect to care for him with the assis tance of his mother and father, but results from H's present attitude, which has been supported by the mother.

56 The mother says she would be reluctant to go to family therapy because she is fearful of the father and would not even want to be in the same building as him without having security present. She advised that she would not want to be in the same room as him even if a therapist was present. There is no basis at all for such a requirement on the part of the mother as there is no evidence the father has assaulted, or threatened to assault her, in the seven years since they separated. The only complaint of the mother about the father amounted to him throwing a bottle of water near her in or around 1997. There has been no violence or threats of violence since that time. The mother alleges she has found the father's conduct intimidating at court hearings, but gave no evidence of this.

57 The mother has failed to attend the Mums and Dads Forever course, which was previously ordered in 2001, although she now says she will finally do it in January 2005. In my view, she has no desire to learn how to deal with the father for the benefit of H.

58 It would only be possible for H to have meaningful contact with the father if it is promoted by the mother. In my view, if contact was to be ordered, it is essential that the mother and H attend upon a therapist in the hope that the mother's fears and concerns can be allayed.

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

59 The mother has the capacity to provide for H's physical and intellectual needs. The letter from the school principal describes him in glowing terms, as does Dr Watts. This, I am sure, is a result of her care, but also because he has had contact with the father and his parents over the years. There is, however, the potential for H to suffer emotionally as a result of the mother's attitude to his contact with the father and her refusal to promote that relationship. It is essential, in my view, that the mother attend counselling to attempt to deal with her unreasonable fear of the father and in relation to the issue of H's contact with his father. It is essential, if sufficient safeguards are in place, that she should be able to encourage and

foster H's relationship with the father instead of being negative about it as she has obviously been in the past.

60 As stated previously, the only contact which could possibly the husband has the capacity to provide for the needs of H.

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:

61 I am satisfied that H will not be subjected to physical harm in either the mother's or the father's household with his parents present. There is a prospect, however, that he may suffer psychological harm as a result of the mother's attitude to the father and to H's contact with him. The fact that she is determined that H has been sexually abused, when this has not occurred, has the potential to impact upon H, particularly by way of her reaction and response should contact be ordered. As stated previously, the mother needs counselling to deal with these issues.

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

62 For many years the father's attitude to the responsibility of parenthood was poor. He has in the past been a hopeless heroin addict. He confirms after the birth of H he had little energy to give to either the mother or H. He has over the years hidden his drug dependence and the fact that he was using heroin. In 2000 he was said to be reluctant to give up drugs. He made an application for unsupervised contact when he was using heroin. Not surprisingly, the mother has had difficulty accepting the father is now drug free.

63 He concedes the mother is fearful of him being under the influence of drugs while H is in his care because of his past addiction. For this reason he had drug tests on a Monday after Sunday contact visits to allay her fears. He agreed that if contact was to be reinstated, then there should be mandatory drug testing after contact has taken place, particularly if contact was to be in an unsupervised environment.

64	The mother has displaye	d a serious and committed attitude
towards her role as a parent. support from the father.	For many years she received no

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(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to the child or a member of the child's family;

65 I am satisfied that there has been no violence involving H or a member of the mother's or father's family. There is no family violence order applying at the present time.

(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

66 Unfortunately, given the fact that H has refused to see the father since June 2004, and continues to refuse to see him, it is not possible at this time to make a final order in relation to contact. If contact is ordered it would have to be on the basis that the parties and H attend family therapy and the contact was strictly supervised. The matter would then have to be reviewed.

Conclusions on contact

67 The evidence is that prior to the allegations being raised by H in 2004, he had a good relationship with his father and he enjoyed the contact supervised by his grandparents. The allegations raised by the mother and H relating to inappropriate conduct on behalf of the father were made shortly after orders were made for H to have overnight contact supervised by the grandparents, and the father have some periods of unsupervised contact with H. I have no doubt the mother was highly distressed at the thought of this contact taking place as she had vigorously opposed it in the past. That distress would have been obvious to H, who is an intelligent and sensitive boy.

68 H has been very well aware of his mother's attitude to the father and to the contact. The mother says H should not have to go if he does not wish to do so. In my view, H has been given far too much responsibility by the mother in relation to this matter. He was able to say he did not want to go he did not wish to see the Child Representative, or go to Relationships Australia, and the mother agreed to this. This matter should be taken out of H's hands and he should be advised that it is not his responsibility to make decisions in relation to the issue of contact.

69 It is now seven months since H has had contact with the father. If contact is going to be reinstated, it should be done sooner rather than later. Dr Watts was asked by the Child Representative

to give some advice to the Court as to the likely long term impact upon H of not seeing the father. While these are matters not strictly within Dr Watts' expertise, as a psychologist his opinion in relation to the benefits and negatives to H of such contact is helpful.

70 A benefit to H of not seeing his father would be that it takes the pressure off him in the short term. As stated previously, he knows his mother does not want him to see his father. He knows his mother and her extended family do not like him and his relationship with him is not supported in that household. At the moment it is easier for him to accept his mother's position.

71 Another benefit to H relates to the father himself. He does have a long history of drug use and psychiatric and psychological problems. He has had treatment over the years from a number of health professionals and has been hospitalised. H's contact with his father has had to be supervised up until recently because of the father's difficulties. Not having contact with the father will ensure he does not have to see him in a supervised or protected environment.

72 The negatives to H in the long term in not seeing his father are as follows. It leaves H with a sense that he has power to make major decisions in his life. It is totally inappropriate for a child of this age to be making such decisions in relation to such an important issue.

73 Dr Watts says it is likely that if H is allowed at this stage to say that he does not wish to see his father again, then this may affect his view on relationships in later life. He has been encouraged in these particular circumstances because there may be some problems in his relationship with his father to avoid it altogether. He may see this as a way of dealing with difficult relationships in the future.

74 If H does not have contact with the father, he will miss out on seeing the father's extended family and knowing anything of their biological heritage. The paternal grandparents love H and have, up until the allegations made by H, had a very close relationship with him. Although H now says he does not have a good relationship with them, this is at odds with what was happening when he had contact. These relationships are of benefit to H.

75 The father has significant problems, but he is a loving and devoted parent. He has continued to seek contact H against significant opposition by the mother. There is no doubt that what

he has to offer H is restricted by his own psychological and psychiatric difficulties. On the other hand, he is committed to the relationship with H and it appears until 2004 H enjoyed the contact he had with him.

76 On balance, in my view, it is in H's best interests to have contact with his father, for how long that contact should occur and in what circumstances should be decided after family therapy and supervised contact with Relationships Australia. It is also essential that the mother has counselling and/or family therapy in order for her to encourage and promote H's contact with the father.

77 The mother should have by now attended the Mums and Dads Forever course. It is hoped she now has some insight into the impact her conduct and attitude to the father would be having on H.

78 After the family therapy and/or counselling has taken place, H should have contact supervised by Relationships Australia at such times and days as recommended by them. I agree with the proposal of the Child Representative that Relationships Australia should provide a report after no less than six supervised contact visits and a further decision then be made in relation to the issue of whether contact should continue at all, or on a strictly supervised basis, or supervised by the paternal grandparents or unsupervised.

I certify that the preceding [78] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate